The New Jersey Supreme Court recently issued a landmark ruling on the duty of a commercial property owner to maintain a leased property.
In Baldwin Shields v. Ramslee Motors, the court considered whether the owner of a commercial property owed its tenant’s invitee a duty to clear snow and ice from the property’s driveway while the property is in the sole possession and control of the tenant. The clear and unambiguous lease agreement between the parties stated that the tenant was solely responsible for the maintenance and repair of the land and any structure of the premises, as if the tenant were the de factor owner of the leased premises. The tenant also testified at a deposition that they were responsible for clearing snow and ice from the property.
The court ultimately held that the tenant was responsible for the removal of snow from the driveway, and that the property owner was not responsible since they had relinquished control of the property to the tenant. This case is notable since commercial landowners typically have a non-delegable duty to maintain their property. This case appears to carve out an exception when the tenant has exclusive control and possession of the property.
Thanks to Heather Aquino for her contribution to this post. If you have any questions, please email Georgia Coats.Read More
In Berganzo v. Bronx Realty Group LLC, the Appellate Division, First Department addressed whether the defendant/property owner created an icy or slushy condition by improperly piling snow in the area where the incident occurred.
The case involved a personal injury action where the owners moved for summary judgment arguing that they did not have actual or constructive notice of the icy condition which caused the plaintiff’s alleged fall, and that the fall occurred while a storm was in progress. The plaintiff slipped on ice on the defendant’s property between 5:00 am and 6:00 am. The defendant’s argued that since it was raining at the time of the accident that they were relieved of their duty to keep the premises safe until the storm concluded.
The lower court denied the defendant’s summary judgment motion on the basis that issues of fact existed as to whether the property owners negligently caused the condition by piling snow in the area where the incident occurred. Specifically, one witness alleged that there was 3 to 4 inches of snow in the area of the incident in the days prior to the accident. The Appellate Division affirmed and held that issues of fact existed as to whether the defendant’s created the icy or slushy conditions.
This decision serves as a reminder for property owners that when piling snow on their property to be careful that it does not create a dangerous condition.
Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions.Read More
In the recent decision Castlepoint Ins. Co. v Southside Manhattan View LLC, the First Department addressed the applicability of a broadly worded construction exclusion. That exclusion expressly provides that it applies to any work performed as part of or in connection with the enumerated construction operations.
The underlying litigation concerned a personal injury that occurred at a construction site. The plaintiff alleged that while working on sprinklers at the site of a renovation project, he fell off a ladder after touching live, uninsulated electrical wires. The insurer for the building disclaimed coverage, citing the construction exclusion in the policy.
The plaintiff argued that the work he was doing at the time of the injury, working on sprinklers, was not a part of any of the specific construction operations enumerated in the exclusion, and accordingly should not apply. But the court was not convinced. The First Department held that because the exclusion language applied not only to work that was part of but also “in connection to” the enumerated operations, it unambiguously applied to the sprinkler operations at issue.
This decision is a reminder to insurers and insureds of the importance of precise drafting in insurance contracts, particularly with respect to exclusions.
Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions.Read More
In Unitrin Auto Home Ins Co. v. Sullivan, the Second Department declined to apply the intentional acts exclusion to bar coverage for a claim arising out of a claimant’s injury after being hit with a cup of urine.
In 2005, the insured was driving a car covered by a policy issued by Unitrin Home and Auto Insurance Company (“Unitrin”) along with two passengers. For unknown reasons, the parties wished to empty a cup filled with urine on a passerby. However, the passenger, apparently unintentionally, hit the passerby in the face with the cup itself, causing personal injuries. The claimant filed a personal injury action against the insured. After various motion practice, the only surviving claim against the insured was for intentional tort. Unitrin subsequently disclaimed coverage based on policy exclusions for intended injury and for intentional acts.
The trial court granted summary judgment to Unitrin, finding that, because the harm flew directly from intentional conduct, i.e. the desire to empty the contents of the cup, the harm is deemed intentionally caused. This was the case, the trial court held, “irrespective of the insured’s subjective intent and notwithstanding that the actual injuries may have been more extensive than he anticipated.”
On appeal, the Second Department reversed and held that a triable issue of fact existed as to whether the events constituted an “accident” under the policy. Specifically, the court held that, although there was evidence the parties intended to douse the claimant with urine, “there was no intent to throw the cup and strike” the claimant. The court distinguished cases where “the intentional act exclusion applies regardless of the insured’s subjective intent.” In these cases, such as sexual abuse of a child, the exclusion applies regardless of the whether the perpetrator lacked subjective intent of causing harm.
The Unitrin decision further limits the extent to which courts will bar coverage for intentional acts, even if the ultimate harm directly flows from the intentional conduct.
Thanks to Douglas Giombarrese for his contribution to this post. Please email Georgia Coats with any questions.Read More